A Gritty Approach to Avoiding First Impression Hiring Mistakes

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By Dan Gephart, October 17, 2018

Author J.K. Rowling wrote in one of those boy wizard books: “First impressions can work wonders.” Well, they didn’t work wonders for J.K. Her first Harry Potter book was rejected by 12 different publishers before it found a home and became an industry all its own.

First impressions aren’t to be emphatically embraced, but tempered with caution.

Exhibit A: Gritty.

The Philadelphia Flyers of the National Hockey League introduced Gritty as their new mascot on a recent Monday morning. What stands out on the seven-foot-tall mound of unkempt orange fur is the set of googly eyes that never blink. Media called Gritty a big orange blob, a creep, terrifying nightmare fuel, a cross between Elmo and Grimace gone wrong, the Babadook of professional sports, and the most frightening mascot ever invented. There was widely held agreement that he had a major substance abuse problem.

Gritty was the laughingstock of social media. Within a few hours of his introduction, he was photoshopped into images from every horror movie imaginable. People shared videos showing their young children screaming at the sight of Gritty’s monstrosity.

As morning moved into afternoon, it became clear: The Flyers had made a miscalculation of epic proportions. Gritty was the New Coke of mascots. The Flyers haven’t won a Stanley Cup since Jimmy Hoffa disappeared. Maybe Gritty needed to vanish, too.

But then the unexpected happened. People started to embrace Gritty. Perhaps, the mascot’s human side came out when he slipped on the ice during his first night on the job. Or maybe people felt bad about the abuse he was taking. Maybe people liked the resiliency Gritty showed as he got pummeled all over the Internet. Whatever it was, fans (most, not all) got over their shocking first impressions.

First impressions are formed within milliseconds and based heavily on our biases. I sometimes get mistrustful when someone offers me a limp handshake or fails to look me in the eyes when greeting me. I have to regularly remind myself: There are many reasons why someone may not have a firm handshake or may look down at the ground when we meet. It could be ability-related, or there could be cultural or religious reasons.

All hiring managers are trained at some point to avoid the “Just Like Me Complex.” Whether we admit it or not, we are biased in favor of people like us, whether it’s our race, gender, political beliefs, education, or personality. You are all aware of the study that found that resumes bearing African American or Hispanic names received half as many callbacks as those with more traditional white names.

First impressions lead to untold poor hiring decisions every day. Let the job candidate worry about that first impression. You need to make a decision that isn’t based on that initial gut feeling. Here are some ways to avoid the first impression trap:

  1. Self-identify your biases and be aware of the role they play when making personnel decisions.
  2. Focus on the objective, job-related qualification standards of the position for which you’re hiring.
  3. Ask the same questions of all candidates. (While you’re at it, make sure to leave out any questions that border on illegality.)
  4. Take careful notes during each interview. The notes will help you make the best decisions. They will also help protect you if there is a future discrimination claim.

If you’re unsure of any of these suggestions, well get yourself some training. As you know, we offer that training – and we do it quite well.

By the way, Gritty’s week got much better after that rough start. There were appearances on Good Morning America and the Tonight Show with Jimmy Fallon. In a sports world overrun with forgettable sports mascots, Gritty appears here to stay.

May you see the true Gritty in your next hire. Gephart@FELTG.com

 

FELTG Training is not Like Law School

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By Deborah Hopkins, October 19, 2018

If you’re like me, you don’t have the fondest memories of law school. Sure, there were classes I enjoyed and professors who challenged me (in a good way), but there were a lot of things I didn’t enjoy. I think I started my countdown to graduation before first-year orientation was complete. Among the worst memories are those times I was called on, required to stand up in front of 60 classmates, and grilled about the minute details of the assigned class reading as sweat rolled down my back and I internally prayed for a fire drill or power outage.

Those days are behind me. I still spend most of my time in a classroom, but I now have the privilege of being in the front of the room. I still have to answer questions and some of them are stumpers, but all in all I absolutely love teaching classes on employment law for FELTG and haven’t once had a nightmare about anything that has happened during one of our programs.

Participants often give feedback about our trainings and many times the feedback directly correlates to how FELTG training is nothing like law school. Here are a few of the recent areas that students have commented on.

FELTG doesn’t use the Socratic method. That’s right, we don’t. All of our instructors know the horror of the being put on the spot, so we will never do that to you in any of our classes. We will ask questions and see if anyone would like to answer because we love in-class discussions, but we won’t ever force you to stand up and talk about what you know – or reveal to the class that you don’t know anything because it’s your first week on the job. Rest assured that when you come to our classes, you don’t have to say a word all week, if you don’t want to.

FELTG’s intent is to teach you, not screen you out for failure. We’ve all seen the bad movie that takes place in law school. On day one, the professor uses some version of this speech: “Look to your right and to your left. At the end of this semester, one of the two people next to you  – or maybe it’s you – won’t pass this class and will be kicked out of law school.” Well, at FELTG it is not our goal or desire to kick you out or to have you fail the class. Our goal is to teach you things – law and strategy – that you might not have known, in order to make your job easier and the government run more efficiently. And if you earn CLE or HRCI credits and happen to have fun while doing it, then we consider the class a success.

There is no homework or pre-reading required. Some participants of FELTG programs have been in the business a long time, while others come to training right after starting a career (or career change) in federal employment law or federal supervision. With that understanding, we never give you a reading list or pre-work for any of our seminars. You can show up on day one with zero knowledge, and you will be just as welcome as if you have 20 years of experience litigating before the MSPB or EEOC. One of the most common things our participants say is that they always learn something new from our classes.

We don’t have forced group projects. We won’t do that to you. There are times you have the option to have group discussions or mini-workshops, but if you prefer to work alone, that’s no problem for us. (Exception: Our MSPB and EEOC Hearing Practices Week requires you to work with your litigation team to prepare and deliver a hearing in front of a judge, so you do have to work with others a bit during this class.)

All questions are welcome. There are no stupid questions, and our instructors will assure you that all questions – no matter how silly or basic you think they are – are welcome in our classes. After all, if you’re thinking it, chances are that at least a handful of your other classmates have the same question. So ask away!

There are no final exams. FELTG offers an optional Federal Employment Law Practitioner Certification for a number of our classes but we NEVER require participation, and the testing mechanism takes the form of quizzes rather than exams. The longest quiz takes about 15 minutes to complete, so there’s no reading period required.

We have fun. Yes, it’s true; we have fun during class. We love what we do, and our instructors will make you laugh by telling jokes, or talking about details from wacky cases. The best part of our business is that we never have to make anything up. Any wild scenario you can imagine has happened in some agency, somewhere, over the last 40 years.

Don’t take my word for it; come to a class and check out why FELTG training is different from any other training you’ve ever attended.

We’re now taking registrations for 2019 classes. We hope to see you soon.

Hopkins@FELTG.com

Scheduling the Oral Response Meeting

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By William Wiley, October 17, 2018

As we all know, once the supervisor serves the notice of proposed removal on the mischievous employee, the employee has the right to make an oral response and defend himself to the deciding official. About 10 years ago, we started recommending that the proposal notice tell the employee the scheduled date and time for him to make that response if he chose to exercise that option.

Recently, we received a question from a webinar participant who had worries about our FELTG approach:

 Dear FELTG,

Our office is trying to decide whether or not to use your example from a recent FELTG Webinar (Watch Your Words: Drafting, Defensible Charges in Misconduct Cases), and rewrite the oral and written reply paragraph in our proposals to include a date for the oral reply.  However, setting a date in advance seems to be somewhat concerning to us.  For example, will the employee feel that the oral reply is a requirement or expectation of management and would we try to schedule the reply within the 10-day comment period (for CBA employees) or just outside those 10 days?  In addition, is there a potential argument of ex parte communication if it appears the Proposing Official secured a meeting time with the Deciding Official?  Does it call into question the extent to which they discussed the proposal?

And our ever-elucidating FELTG response:

If you’re concerned that the employee might believe the scheduled date is an expectation, then word the notice strongly: “Although not a requirement nor expectation, should you choose to respond to the proposal notice, you may do so at 2:00 on Friday, July 13 in the main conference room, Building 101. Some employees exercise this option, others do not.”

As for the date for the oral response, I usually set it on Day 10 or the next business day. I would not set it sooner because of the literal wording of your CBA. For non-CBA employees, I set it on Day Seven or the day after. No reason to set it later.

Absolutely no problem with ex parte between the proposing and deciding officials relative to setting the date. When I’m representing an agency, I usually make the appointment myself with the DO. Even if the PO made the appointment personally, discussions of such logistical matters have never been found to be prohibited ex parte communications. If there’s ever a question as to whether they discussed the proposal, all we have to do is have the PO or DO swear on a stack of CFRs that they did not discuss anything other than scheduling the meeting. No problem at all.

The benefit of prescheduling the oral response is much greater than any risk. Agencies have lost cases because they did NOT pre-schedule and waited for the employee to make a contact to schedule. The typical problem is when set the meeting when it’s convenient for us, but also we avoid any lost-message claims.

Hope this helps. Wiley@FELTG.com

Tips from the Other Side, Part 10

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By Meghan Droste October 17, 2018

The idea of how to substantiate a claim of harassment is never far from my mind as a complainant-side attorney.  I have to consider from the very beginning what evidence a potential client has and what evidence we are likely to develop during the course of an investigation and litigation.  One of the most important considerations is credibility because harassment claims almost always come down, at least on some level, to a comparison of the victim’s statement to that of the alleged harasser. Who is a judge more likely to believe?  If I do not believe a potential client, there is no chance I can convince a judge to believe that person.

Agencies should also be concerned about credibility determinations.  One of the first things an agency should do after learning of a complaint of harassment is to investigate the allegation. The administrative investigation, which is different and separate from an investigation of a formal EEO complaint, is essential to determining what, if anything, happened and what the agency needs to do to address it. The investigation should also be the start of determining whether the complainant and the accused are credible. If the story of the alleged harasser doesn’t make sense, that is a huge red flag that you ignore at your own peril.  Too often it seems like agencies are willing to dismiss an allegation simply because there are no other witnesses, even in the face of clearly questionable testimony from an alleged harasser.

How do we determine credibility?  It’s not an exact science, even for veteran investigators and others who have significant training in evaluating testimony.  The Commission has identified a few facts that agencies should consider.  First, is the testimony believable? Does it make sense on its face? Second, how did the person act when giving his or her testimony? Does the witness display a demeanor that indicates that the testimony is true? Or is there something in the way the person responds to the questions that makes you question if he or she is lying? Third, does the witness have a motive to lie? The witness’s role in the incident, and her connection to the victim or the harasser, may make it more likely that the witness is not telling the truth. Fourth, is there any evidence, either other testimony or documentation, that corroborates the story? And fifth, does the accused individual have a past record of similar behavior? As the Commission notes, none of these factors alone are determinative.  The lack of physical evidence or witnesses does not mean that an event did not occur.  The fact that the accused employee has engaged in similar behavior in the past does not prove that harassment occurred this time. The agency should consider all of these factors as a whole.

No one expects you to be the next Sherlock Holmes. But you should be mindful of the evidence before you when determining the agency’s next steps.

Send questions or topics for future Tips from the Other Side column to Droste@FELTG.com.

The Ford-Kavanaugh Tell-the-Truth Tool

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By William Wiley, October 9, 2018

The Ford-Kavanaugh Senate hearings had much of our country focused on the concept of evidence and proof. In last week’s FELTG News Flash, we wrote about the problem the Senate has because it is arguing about “proof” without having a definition of what level of proof is relevant. Is there proof that Kavanaugh, who was confirmed and sworn in over the weekend, tried to sexually assault Dr. Ford 35 years ago? How much evidence is necessary for one to conclude that the claim has been proven? Consideration of the nomination to be a Justice on the Supreme Court is effectively a job interview. Do we need any proof at all relative to serious claims of prior sexual misconduct?

We eliminated a couple of options relative to the degree of proof that makes sense in a case like this. Although there are good arguments to the contrary, and although there are those who call for “concrete” evidence and others who call for no evidence at all, we concluded that the best standard to use in cases like this is the standard used throughout most of government regarding personnel matters: preponderant evidence. A preponderance of the evidence is reached when a fact finder concludes that it is more likely than not that a claim is true; e.g., that the facts claimed “probably happened.” Those old scales of justice are just barely tipping in the direction of believing the allegations.

When explaining her vote to confirm last Friday, Senator Collins stated that the standard of proof she was using was whether it was “more likely than not” that Dr. Ford’s claim regarding the sexual assault was correct. Which leaves us with deciding who is more likely to be the more truthful about what happened at that teenage drinking party 35 years ago. Did a drunken Nominee Kavanaugh attempt a sexual assault as Dr. Ford now claims at the 100% certainty level? Or, as Judge Kavanaugh asserted forcibly and with absolute certainly in the hearing, is the correct answer that he did not do it?

In other words, which of the two possible scenarios adopted by Senator Collins and several other Senators is more likely to be correct?

1. Kavanaugh sexually assaulted Ford at that high school party and is lying about it now so that he can be appointed to the Supreme Court (or is forgetful).
2. Someone other than Kavanaugh sexually assaulted Ford that night and she mistaken as to who her attacker was.

Many “experts” and Senators argue that we cannot conclude that the attack happened because there is no evidence beyond Dr. Ford’s claim. Well, that’s not exactly accurate. There indeed is evidence beyond the claims of Dr. Ford. It might be fair to say that the evidence does not amount to proof if one is using a higher standard of proof than preponderance. However, if we are using the widely accepted standard of preponderant evidence, MSPB gave us a tool over 30 years ago to assess the evidence in a he-said/she-said situation such as this one. Based on the case in which the Board defined this truth-telling instrument, that tool is known as the Hillen Factors.

You see, in civil service law, it is somewhat common to have two witnesses testify to two diametrically opposed sets of facts. This is especially true in claims of sexual misconduct. Many such situations involve a he-said/she-said conflict in testimony, simply because most acts of sexual misconduct occur in private, involving only two witnesses. If the Board were to require corroborating evidence in each of those claims, many perpetrators would go unpunished for lack of “concrete” evidence that the misconduct occurred. Appreciating the unfairness of such a situation, and acknowledging that the “probably” proof standard was appreciably lower than the standard needed to throw somebody in jail for a crime, the Board laid out the Hillen Factors as a guide to its judges as to how to assess evidence, and as an instrument for parties to an appeal to use to prove their claims.

Now, you get to be a US Senator (or Fox/CNN talking head, if you see that as a better job). Consider each significant Hillen Factor below relevant to what you know about each witness. Answer the questions, fill in the blanks, and then you can decide who’s telling the truth:

Hillen Factor
Kavanaugh
Ford
Reputation for honesty
Has lied previously?
Has lied previously?
Bias or lack thereof
Reason to lie?
Reason to lie?
Inherent improbability
Statements reasonable?
Statements reasonable?
Demeanor
Calm and straightforward?
Calm and straightforward?

It is fair to say that there is not a lot of evidence to support either witness. However, using the preponderance of evidence standard, there does not need to be a lot of evidence for there to be proof. There just needs to be a little bit more one way or the other, enough to slightly tip the scales of justice.

You get to be the judge. Decide where the Hillen analysis takes you. You and I might reach a different conclusion, but we cannot say that there is no evidence. There are always the Hillen Factors to help us get there. Without them, victims of one-on-one attacks will never receive justice. Wiley@FELTG.com

Civil Service Law and Kavanaugh

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By William Wiley, October 2, 2018

As I watched the Ford-Kavanaugh Supreme Court Justice nominee hearings recently, I was struck by the lack of standards for the process. In case you’ve been in a cave for the past week, the issue of the hearings was whether nominee Kavanaugh had engaged in sexual misconduct with Dr. Ford when they were both teenagers some 35 years ago.

The scene was riveting. Dr. Ford testified consistently and fearfully for five hours as to her memory of a party at which Brett Kavanaugh tried to sexually assault her. Nominee Kavanaugh testified loudly and angrily about how unfair the nomination process had become. Dr. Ford swore that she was 100% certain that the attack occurred as she had described it. Judge Kavanaugh swore that it did not. A classic he-said she-said situation.

Subsequent to the two testimonies, the Senators and media pundits were flummoxed, emotional, and all over the place as to what to do. Who was telling the truth? Where’s the proof either way? THERE IS NO PROOF! OH, YES THERE IS!! Such anger, hostility, and bewilderment as to what really happened that night. Geez, you’d think that the future of America was at stake or something in what is really just a personnel matter.

The more I heard the Smart People talk, the more it became clear to me that our civil service system is designed to determine the truth much better than what the members of the committee and the public commentators are doing.

First, there’s the matter of exactly what does “proof” mean? That concept was thrown around a lot, and it certainly is the heart of the matter. But if you listened closely, you came to realize that there was no generally accepted definition of the concept of proof applicable to the event at issue at the hearing.

Those readers who have attended our civil service law seminars know that there are three levels of proof applicable in personnel matters in the executive branch:

Substantial Evidence. This is the lowest burden of proof in a federal personnel situation. Most commonly, we use it when deciding whether an agency has proven that a poor performer should be fired. A layperson might say that its meaning is that “maybe” the employee was a poor performer, although reasonable others might disagree. Hard to get lower than that.

Preponderant Evidence. This is the burden of proof most commonly used in personnel situations because the most common personnel situations involve discipline and discrimination matters. In these sorts of cases, the agency or the employee prove their case if they can show that “it is likely” that the claims are valid; e.g., it is likely that the employee engaged in the charged misconduct that was the basis for the removal.

Clear and Convincing Evidence. The civil service laws have reserved this highest proof burden in personnel matters for the most beloved group of federal employees: whistleblowers. If an agency fires a whistleblower, it must leave the judge with a “firm belief” that the misconduct occurred, not that it just “probably” occurred as the preponderant level would suggest. The courts have defined this as a “heavy burden.”

Just think what kind of difference it would make in the Ford-Kavanaugh controversy if the Senate would simply decree what the burden of proof was for Dr. Ford’s claims:

  • If substantial proof is all that is needed, the White House had better start looking for a replacement nominee. I think that few clear thinkers could deny that the event at the party 35 yeas ago “might’ have happened. Dr. Ford’s memory seems burned into her brain, graphic in detail, and consistent in description. No, we can’t say that for sure it happened, but that is not the evidence standard when we say that the proof expectation is only substantial.
  • If clear and convincing proof is necessary, Nominee Kavanaugh can start getting fitted for a nicer robe. Some of us might really want to believe Dr. Ford out of compassion for her situation and deep sympathy for someone who has so obviously been traumatized. But aside from those feelings, to my read it is difficult to say that the objective evidence has satisfied the “heavy burden” requirement.
  • If preponderant proof is necessary, then we have to decide who is telling the truth: Ford or Kavanaugh.

And, of course, there’s the rub. Senator after Senator, talking head after talking head, has whined and bemoaned that Dr. Ford cannot be believed because there is no corroborating evidence. It’s just her word against his. In the mind of the uninitiated, without corroborating evidence, we cannot have proof at the preponderant level.

MSPB had a similar problem back in its earliest years as an adjudicating body. A number of cases arose in which the removal on appeal hinged on a determination as to which of two witnesses was telling the truth. Some of the Board’s judges (“presiding officials,” back in the day), tried to dodge the bullet by ruling that as they could not determine who was telling the truth, the preponderant evidence level had not been reached. Well, the Board members would have none of that. They reminded the judges that they were being paid to conclude who was being truthful and who was not. So, they remanded those cases to the bullet-dodging judges and told them to do their jobs of adjudicating. In doing so, the Board created a tool that the Senators could very well use today to make the credibility call between Ford and Kavanaugh.

We’ll describe and apply that tool in a later article. We will no doubt be too late to help with this particular nomination, but maybe the next time something like this comes along, the more clear-headed Senators will find it more useful than gut-based truth-determination.  Wiley@FELTG.com

Homicide in the Workplace

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By William Wiley, September 25, 2018

I’ve always been a worrier. Even in my class picture from the second grade, you can see that I have a lot on my mind and the weight of the world on my shoulders. There are so many rules in life and someone has to be concerned that we all follow them. Even at the ripe old age of seven, I somehow knew that would become my mission in life.

These days, one of my recurrent worries is for the safety of those of you in our FELTG Nation. Did you notice last week that within 24 hours, there were two (2) (!!) workplace shooting sprees? As was reported in the Washington Post, on Thursday, a Rite Aid employee in Maryland entered her regular work space, shot and killed three coworkers, wounded three others, and then shot and killed herself. The day before, an employee of a Wisconsin software company opened fire in his workplace, wounding three coworkers before killing himself. The Bureau of Labor Statistics estimates that every Monday through Friday, every week of the year, two people are killed in a workplace by a coworker. These recent shootings will become part of those statistics in next year’s report.

I think it’s fair to say that the shooters in these two situations must have been under a lot of stress. Happy employees don’t usually open fire on people they work with. The Rite Aid employee was described by coworkers as “normally, a nice person.” There must have been something very stressful that pushed her over the edge.

Think about your federal workplace for a minute. Which of the following events do you think would be the most likely to drive one of your coworkers to kill somebody?

  1. Having someone steal your afternoon snack from the lunchroom refrigerator.
  2. Receiving a “Fully Satisfactory” performance rating when that no-good employee next to you got a rating of “Exceptional.”
  3. Having your boss propose to upper management that you be fired.

I will yield that any one of these events could result in a fragile person reaching for his Glock. Those afternoon snacks can be very important. However, I think we would all agree that, relatively speaking, receiving notice that you are about to lose your job has to be one of the most stressful events that might occur in a government workplace.

Acknowledging that stress is often related to workplace violence, and that a proposed removal is just about the most stressful event one would expect in a government agency, which of the following options do you think that an agency should engage in when proposing to fire an employee?

  1. Leaving the employee to perform his regular job for a month, where he has access to all those important government documents you keep locked away on your hard drives and daily contact with multitudes of coworkers and agency clients;
  2. Hiring an armed guard to accompany the employee for a month while he performs his regular duties; or
  3. Removing the employee from the workplace just as soon as you give him the proposed removal, barring his return by confiscating his government credentials, and blocking him from accessing the agency’s computer system from his home computer.

If you did not select number three, above, you are either more brave or more foolish than you should be. As Hamlet would tell you, “Get thee to a nunnery.” There’s safety there and you cannot reproduce.

In December 2016, Congress passed a law that allows supervisors to immediately remove employees from the workplace on the presentation of a notice of proposed removal. As a separate law requires that the employee be paid for 30 days subsequent to a proposed removal, Congress provided that the employee’s pay status in this situation would be paid Notice Leave. To invoke this Notice Leave period and remove the employee from the workplace, the agency has to certify that doing so was the best option of those available, and that NOT placing the employee on Notice Leave “jeopardizes a government interest.” I think it’s fair to say that keeping employees alive and avoiding a potential workplace shooting promotes a nice valid “government interest.”

When the law became effective in December 2016, OPM was given 270 days to issue regulations. Unfortunately, some agencies took the incorrect position that they could not utilize Notice Leave until OPM issued its regulations. In those agencies, employees are being kept in the workplace after notice of a proposed removal, endangering lives and property for no good reason. If OPM would just issue regulations that say that keeping an employee in the workplace after notice of a proposed removal by its very nature “jeopardizes a government interest,” then the potential for death and mayhem could be reduced substantially because agencies throughout government would implement Notice Leave routinely.

Well, the statutory deadline for OPM issuing regulations was a year ago this week. Happy anniversary, I guess. For reasons unfathomable to those of us interested in the safety of the civil service, this delay is an abomination. The comment period for OPM’s proposed regulations closed in the summer of 2017. It already has all it needs to issue final regulations and take a strong step toward protecting federal employees from a stressed-out coworker. Somewhere in that big building known as OPM headquarters – 1900 E Street NW, Washington, DC – sits a desk with the draft final regulations awaiting action. Somebody in that organization has the ability and the authority to move these regulations along, to take a major step toward reducing the chance of a newspaper story about a workplace shooter in a federal building.

If you happen to know who that somebody is, please let him or her know that this is life and death stuff. These regulations could save a life. Your life. And maybe even your contractor’s life (me). Help this young man in the picture above change his frown to a smile. When you’re in the second grade, you never imagine that a federal agency just doing its job could make you happy. Wiley@FELTG.com

MSPB Nominees no More

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By William Wiley, September 20, 2018

Dear FELTG Nation-

It is with a heavy heart that we inform you that our super-secret internal sources report that the Senate Homeland Security Committee has advised the White House that it will not act on the nominations of the three new members of the US Merit Systems Protection Board before the end of the current session. That means that the nominations will be returned to the administration without a vote and the nomination process will have to begin all over with a new Senate in January.

Our FELTG unofficial account tells us that we are now up to about 1,300 pending appeals, ready to be issued, with back pay accruing every day. By next year, we will be in the 1,600s.

Add to this that the current remaining member, Acting Chairman Mark Robbins, turns into a political pumpkin at midnight on March 1. His term will expire, and he cannot be renewed or held over any more. Unless a miracle occurs in February, on that date, the Board will be without any members for the first time in history.

Any agency’s demise diminishes me, because I am involved in the civil service; and therefore, never send to know for whom the nomination folds; it folds for thee. Wiley@FELTG.com

The Leave Mistakes that Supervisors Make

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By Deborah Hopkins, September 19, 2018

Oh, leave. It’s a topic that intersects with everything we do here at FELTG: conduct, performance, EEO, union issues, supervisor skills, and on and on. If you get it right, it’s easy; getting it wrong can cause big problems, legal and otherwise. So what I’ve done for you today is compile some of the more common leave “mistakes” that supervisors and advisors make when dealing with employee leave issues.

But, first things first. Let’s set out a few ground rules. Employee leave entitlements depend on the category of leave involved and can be inconsistent and confusing. Only certain types of leave are an entitlement; others are discretionary. Federal employees have significant rights, but in the discretionary areas (usually annual leave and leave without pay) the supervisor’s judgment about the need for work may be a determining factor on whether the supervisor approves the leave request.

Speaking of leave requests, employees DO NOT place themselves on leave. There is a three-step procedure that MUST be followed according to the law, yet many supervisors don’t enforce it. Ready for it?

  1. Employee requests leave
  2. Supervisor considers request
  3. Supervisor grants or denies request

And that’s it. So, onto the mistakes.

Mistake: Not checking local policy when considering leave requests. While certain areas of leave are discretionary under federal law, agency leave policies may provide more specificity. For example, there is not entitlement to annual leave (even though it is accrued) or LWOP (except for a few circumstances), but your agency’s policy or collective bargaining agreement (CBA) might dictate how those requests should be handled. Always check local policy if you’re not sure. Your L/ER folks or OGC should know those details by heart.

Mistake: Denying leave that’s an entitlement. Some categories of leave are an entitlement IF the employee meets the requirements. This means you have to say yes to a leave request even if it inconveniences the agency to do so. For example, let’s say an employee requests sick leave because his grandmother died, and he has to attend the funeral. That’s an entitlement. The employee gets the sick leave for the reasonable time they need to attend the funeral. Another example: An employee requests 12 weeks (480 hours) of FMLA to have cancer treatment. Even if it’s the end of the fiscal year, your office is crazy busy, and you don’t allow people to take vacations during that quarter, you have to approve the FMLA because it’s an entitlement.

Mistake: Not allowing the employee to choose his pay status during FMLA. A lot of supervisors miss this one, but the employee who is on FMLA gets to decide if the time off will be recorded as sick leave, annual leave, or LWOP. That means an employee can use LWOP during FMLA and keep all his annual leave and sick leave and save it for a rainy day. And there’s not a darn thing you can do about it.

Mistake: Putting an employee on LWOP without the employee’s consent. If a supervisor unilaterally places an employee on LWOP, although the employee did not request it, the supervisor has improperly suspended the employee without adverse action procedures. On appeal, the employee would be entitled to back pay for that period of time he was carried on LWOP without his consent. See Martin v. USPS, 2016 MSPB 16. The authorization of LWOP is a matter of administrative discretion and employees may not demand that they be granted LWOP as a matter of right, Desiderio v. Navy, 4 MSPB 171, 4 MSPR 84 (1980), but the supervisor may not place the employee on LWOP status without the employee’s consent.

Mistake: Letting employees abuse the Voluntary Leave Transfer Program (VLTP). Agency VLTPs are generally for short-term medical emergencies, to get an employee through a difficult time. If a supervisor allows VLTP for medical non-emergencies, it denies the benefit to employees who truly need the leave. Be aware, though, that normal maternity situations meet medical emergency criteria. Therefore, pregnant employees will qualify for VLTP even if there is not a medical emergency related to the pregnancy. Once an employee is approved for the VLTP, though, donated leave use is not an entitlement even if it is for medical reasons; it is still  subject to the same approval/disapproval  procedures as is annual leave. See Jones v. DoT, 295 F.3d 1298 (Fed. Cir., 2002).

I have more, but that should do it for today. Go forth and be wise in granting or denying leave requests – and remember, supervisors, in most cases, it’s up to you. Hopkins@FELTG.com

Why Not an Administrative Jury?

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By William Wiley, September 19, 2018

This is the first part of a three-part series.

In our FELTG seminars, we sometimes have to explain the difference between the two burdens of proof relevant in our business of civil service law: substantial and preponderant evidence.

To fire someone from a government position for misconduct, we have to support the action by a preponderance of the evidence. To fire that same person for poor performance, we need support the action by only a substantial evidence, a lower burden of proof.

Our lucky friends at the VA have the blessing of needing only substantial evidence.

Federal regulations define preponderant evidence to mean that there is enough proof to conclude it is more likely than not that the employee engaged in the charged misconduct and otherwise deserves to be fired. 5 CFR 1201.56(c) and 5 CFR 1201.4(q). For substantial evidence, an adjudicator has to conclude that a reasonable person might conclude that there’s enough proof to warrant removal, not that a reasonable person necessarily would conclude that removal is warranted. 5 CFR 1201.56(c)(1) and 5 CFR 1201.4(p). In comparison, the burden of proof required to throw somebody in jail for a crime in our country most of us know is evidence beyond a reasonable doubt.

Yeah, these are nice lawyer terms. Lawyers love to dance around on the head of a legal pin arguing what these terms mean. But what do they mean in terms that a normal person would understand? Well, here at FELTG, we’ve come up what we think is a pretty darned good analogy that anyone can understand. Perhaps not as eloquent as the regulatory definitions, here’s how we see the difference among the three.

Beyond a Reasonable Doubt:  This one is easy. In most every state on our country and in the federal courts, to find someone guilty of a capital crime, 12 jurors need to agree that a crime has been committed. If 1 of the 12 disagrees, we do not have evidence beyond a reasonable doubt. Therefore, we can use 12 jurors as a benchmark for the other burdens of proof.

Preponderant Evidence:  We’re looking for a more likely than not standard using our jury as an avatar. Given that 6 of 12 jurors would be perfectly balanced, and we need a bit more than that, 7 of 12 would be a good number. So if we charged someone with misconduct, if 7 of 12 of his peers would conclude that he deserves to be fired, then we’d have a preponderance of the evidence.

Substantial Evidence:  We know that his has to be less than preponderant evidence. We also know that the courts have defined substantial evidence as “a grain more than a scintilla.” I have no idea what a scintilla looks like, and a grain is pretty darned tiny. Therefore, being generous, I would say that to have substantial evidence, we would need three maybe four jurors to conclude that a performance removal was warranted.

We’re quite proud of this analogy as a teaching tool. No, there’s never been a court or a board that has stated the burdens in a similar manner, but we hereby give notice that this language is hereby released from our copyrighted© protections thereby freeing any of you adjudicators out there to use it. With all due respect, it’s a lot more relatable than a line like a “grain more than a scintilla” to most of us normal humans (yeah, I’m talking to you, Chief Justice Roberts).

With us in the middle of rethinking the civil service protections these days, it recently dawned on us that maybe this model would serve as an option to get us out of the quagmire of employee appeals, complaints, and grievances. Yes, we could change the law. But rather than waiting for that possibility to happen, what if we set up an alternative system that would tempt employees to forgo their appeal/grievance/complaint rights in exchange for an alternative resolution to their dispute?

And that’s when we got the idea of an administrative jury.

“But, Bill, how would that work?”

Ah, dear reader, I guess you’ll have to look for our next article giving the details. See, we don’t want you to ever stop reading and attending FELTG. That’s why we build in little cliff hangers like this one, to keep you interested. Wiley@FELTG.com